The Legal Strategy To Defend Health Reform

There’s a seemingly intractable conflict facing the Obama Administration – how can they argue – simultaneously – that the mandate is crucial to the Affordable Care Act, while also arguing that the rest of the Act should and can survive if the Supreme Court rules the mandate is unconstitutional?

That’s the Hobson’s choice facing lawyers arguing for the Administration, and while the two positions seem irreconcilable, they may not be.

Merrill Goozner is convinced the two positions can comprise a reasonable and legally logical argument. He cites a recent article in the NEJM, to wit:

“Legally, however, the positions are consistent: the mandate may be an important part of the statutory scheme, and thus constitutional, but not absolutely vital, and hence completely severable.”

Of course, if the mandate is struck down but the rest of the law stands, the insurance industry will scream bloody murder, as they should. Other provisions of ACA prohibit insurers from medically underwriting health insurance, require standard benefit plans, and force insurers to sell coverage to anyone who can afford it.

Therein lies the rub. As Merrill points out, insurers will have to increase rates to pay for free riders who opt into coverage when they need care only to drop it when they’re all better. Then again, that’s not much different from today; there are millions of free riders that get care essentially paid for by taxpayers and others who have health insurance.